“A retailer should view its brand reputation as a valuable aircraft: In order to stay elevated, it must be handled properly and deliberately, because even a moment of inattention can lead to catastrophic consequences,” Partner Robert deBrauwere wrote in a recent article for InsideCounsel.

As co-chair of Pryor Cashman’s Digital Media Group, deBrauwere counsels global brands, celebrities, advertising agencies and content platforms on partnerships, trademark and branding matters, and social media promotions, an area heavily regulated by the FTC.

The Importance of Social Media Policies

“A key factor to consider in social media marketing,” deBrauwere explained, “is who is behind the wheel. If a retailer engages an influencer, a celebrity or athlete, for example, or a third party, to steward its brand, it must continually oversee those efforts to ensure they are executed in ways that preclude liability and are pursuant to rules of engagement that benefit the brand.”

deBrauwere recommends that retailers maintain clear and accessible social media policies that are regularly updated (at least once a year) and inform employees and third parties authorized to use social media on behalf of a brand of the approved uses. He also urges retailers to provide training sessions to all individuals authorized to use social media on the company’s behalf.

Best Practices for Influencers

Once an influencer is engaged by a brand to promote its products, it is critical that the brand, influencer and any outside agency comply with the relevant FTC guidelines, as failure to do so by any one party can expose the others to liability. Further, the parties’ agreement should contain specific language regarding what the influencer is permitted to say.

To read deBrauwere’s advice for influencers contracting with brands, including ways to comply with FTC disclosure guidelines without compromising brand authenticity, view the full InsideCounsel article.

More About deBrauwere’s Practice

Robert deBrauwere is a partner in Pryor Cashman’s Intellectual Property, Digital Media and Litigation Groups. He helps cutting-edge technology companies, popular entertainers, content platforms and media agencies navigate the legal complexities of the Digital Millennium Copyright Act (DMCA), online and social media marketing, the scope of fair use in copyright law, and digital privacy, among other areas. 

To learn more about his work, please visit here.